HAWKINS, District Judge.
This case involves a four-count indictment
Numerous motions were filed by the defendants in this case. This order deals with two of these motions.
I. VIOLATION OF SPEEDY TRIAL ACT
On March 23, 1981, Defendant Gallopo moved this court to dismiss the indictment pursuant to Section 3161(c)(1) of Title 18 of the United States Code ("speedy trial motion").
The Sixth Amendment secures the right to a speedy trial in a federal criminal prosecution. Section 3161, et seq., of Title 18 of the United States Code clarifies what period of delay is considered per se unreasonable and sets mandatory time periods in which a defendant must be brought to trial. It is defendants' position that the statutory minimums established by the Act so as to insure compliance with the Sixth Amendment have been violated.
Section 3161(c)(1) provides in relevant part:
The indictment in this case was filed on December 2, 1980. William Sidney Baldwin, Jr.
"In passing the Speedy Trial Act, Congress recognized the need to provide flexibility to permit a trial court to coordinate the schedules of multiple defendants and their counsels." United States v. Edwards, 627 F.2d 460, 461 (D.C.Cir.1980). Thus, Congress provided in Section 3161(h)(1)(F):
According to the records of the Clerk of Court, Defendant Baldwin filed several motions on December 22, 1980, including a motion to dismiss, a motion to strike surplusage, and a motion for bill of particulars. These motions were disposed of by the court on February 12, 1981. Thus, in light of the provisions quoted above, the period of time from December 22, 1980, until February 12, 1981, should be excluded in the computation of the seventy-day period. With the seventy-day period beginning on December 3, 1980, and this exclusion being considered, it is clear that the provisions of the Speedy Trial Act were not violated when the trial commenced.
This court's analysis, specifically set forth as to Defendant Baldwin, disposes of the matter as to Defendant Gallopo and all other defendants in light of Section 3161(h)(7) of Title 18 of the United States Code which provides:
No motion for severance was ever granted in this case. Moreover, this court finds that the period of delay experienced by the other defendants was a reasonable one.
This court granted a continuance in the proceedings on two occasions, and in view of the above-quoted provisions, orally stated during subsequent proceedings its reasons for continuing the case past the original trial date set for February 2, 1981, and the second trial date of March 2, 1981. See, United States v. Edwards, 627 F.2d 460, 461 (D.C.Cir.1980) (statute does not require that judge's findings be placed on the record exactly at the time that the continuance was granted). This court specifically noted the complexities of the case due to the number of defendants in the case and the necessity to appoint another attorney to represent Defendant Robert Charles Michael
Based on the foregoing, it is the finding of this court that there has been no violation of the Speedy Trial Act and, therefore, defendants' motion to dismiss the indictment is hereby denied.
II. GOVERNMENT'S NOLLE PROSEQUI OF COUNT FOUR
Prior to calling this case for trial, the government advised the court and counsel for the defendants that the government intended to move to dismiss Count 4 of the indictment pursuant to Rule 48(a) of the Federal Rules of Criminal Procedure. That Rule provides:
The defendants objected to the government's motion and the court withheld ruling on the motion pending the filing of legal memorandae by counsel for both sides.
In summary, defendants object to the government's motion on the following grounds:
At the outset, it should be recognized that "the right of the prosecution to move for and the Court to grant dismissal of an indictment or separate counts thereof is a hornbook principle." Thomas v. United States, 398 F.2d 531 (5th Cir. 1967).
This court finds the first ground proposed by defendants to be without merit. In moving to dismiss Count 4, the Assistant U. S. Attorney did not abuse the prosecutorial discretion afforded him. See, United States v. Valencia, 492 F.2d 1071, 1074 (9th Cir. 1974). While perhaps the defendants might be placed in a more preferable position if the government was required to go forward on all four counts, such a reason would not warrant denying the motion to dismiss Count 4. See, Id. at 1074 (defendant protests dismissal of one count that would have afforded him standing to challenge a search).
Moreover, in response to defendants' second argument as to the fairness of successive criminal prosecutions for the same conduct, this court need only refer to the United States Supreme Court's pronouncement in Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). There the United States Supreme Court recognized the validity of refusing to bar a second trial even though there had been a prior trial by another government for a similar offense. Id. at 136, 79 S.Ct. at 685.
Finally, this court does not find that the government was required to gain the consent of the defendants before moving to dismiss Count 4. Defendants argue that their consent was necessary because the government's motion occurred subsequent to the commencement of the trial, which effectively occurred when the parties stipulated during the suppression hearings as to certain testimony which would become a part of the case in chief. This court finds that so far as Rule 48(a) is concerned, the government's motion was not filed "during the trial," and thus defendants consent was not necessary. The withdrawal of the count occurred before the trial had begun. See, United States v. Delagarza, No. 80-1744, 650 F.2d 1166 (10th Cir., 1981).
For the foregoing reasons, the court grants the government's motion to dismiss Count 4 of Indictment No. 80-278.
It is, therefore, concluded that defendants' motion to dismiss the indictment due to an alleged Speedy Trial Act violation is denied.
It is further the ruling of this court that the government's motion to dismiss Count 4 of the indictment is hereby granted.
AND IT IS SO ORDERED.
Voir dire began in this case on March 23, 1981, and, thereafter, all defendants waived their right to trial by jury. The case was subsequently called for trial on April 1, 1981. Regardless of which of the two provisions applies to this case, the seventy-day period had not expired.